Noam Sohlberg
Vice President
Judge Ruth Ronen:
1. Not without hesitation, I agree with the judgment of my colleague, the judge D. Barak-Erez.
The dilemma stems from the fact that, as my colleague, Vice-President N. Sohlberg, also noted, there is no doubt that at this point in time, it is in the best interest of the minors that the adoption order will indeed be granted. Moreover, the respondents even acted during the surrogacy proceedings to obtain the consent of the mothers to sever the connection between them and the babies that were born. This was done by the mothers signing the affidavits of waiver, in which each of them declared that she had agreed to serve as a surrogate for a fetus with whom she had no genetic connection; and that she was irrevocably waiving her rights with respect to the fetus. The District Court's approach was, as may be recalled, that these declarations are sufficient to establish the consent of the mothers to sever the relationship between them and the minors who were born, and to give the minors for adoption. This is despite the fact that these are affidavits whose wording is not identical in form and content to the wording of the letter of consent as determined in the Regulations.
On the other hand, the affidavits signed by the mothers of the birth do indeed lack details set out in the text of the letter of consent as defined in the regulations. At least some of the missing details are of considerable significance - such as the fact that the affidavits do not include a waiver by the adoptive mothers of the right to receive information about the minors; or they do not inform them of their right to withdraw their consent within a period of 60 days from the date of the child's surrender to his efforts.
2. The law often recognizes the possibility of overcoming deficiencies - and to give validity to documents that contain such deficiencies. The question is whether in the present case the differences between the waiver affidavits and the wording of the letter of consent are sufficient to bring about the result that there is no reason to allow the requested adoption. My colleagues were of the opinion that signing the waiver affidavits is not equivalent to signing the letter of consent. My colleague emphasized the deficiencies in the letter of consent; and my colleague further noted the desire not to incentivize similar future conduct of bringing children into the world without regulation and supervision.
3. In my opinion, too, it is important to ensure that the adoption process is carried out properly, in a manner that is determined in detail by the legislature. In the case at hand - There is no dispute that there was no such meticulousness and that the mothers who gave birth did not receive at the time of signing the affidavits all the information that should have been given to them in order to obtain their consent. The lack of details therefore created a problem, and the solution proposed to her by my colleague is not far-reaching - All that was determined was that the respondents must make an effort to locate the mothers who gave birth in order to complete the adoption process as required.
I accept this solution. I am also of the opinion that even if it is possible to conclude from the affidavits of waiver and from the conduct of the mothers since they were signed until today that they have agreed to give up the minors for adoption, it is not possible to completely waive the demand - which does not impose too heavy a burden on the respondents - to try to locate the mothers who give birth in order to complete the adoption process properly. As my colleague also noted, insisting on this demand is intended not only for the benefit of the minors who are the subject of this proceeding, but also for the benefit of other minors in the future, and for the benefit of mothers who give birth in other future cases.
4. My colleague's comments in relation to Section 13 to the Adoption Law and the possibility that an alternative to use it will be examined if the mothers who give birth are not located - I also accept them.
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